Eviction

FAQs

No. You do not have to have a lawyer when you go to court. In California, several hundred thousand people each year go to court without a lawyer. This is called being in "pro per" -- the legal term for a person representing him or herself without a lawyer. However, some cases are complicated. This is when a lawyer can be most helpful.

You may find that you need a lawyer if:

anyone involved has an estate with substantial assets;

anyone involved lives outside of California;

there are some other legal proceedings going on at the same time;

anyone involved has special needs (physically/emotionally disabled);

anyone involved is a member of the armed services, or

anyone involved is Native American (in which case, federal laws may apply).

Lawyers are trained to research the intent of laws and judicial decisions and apply the law to the specific circumstances you face. In addition to skills in legal research, a lawyer will usually have:

familiarity with courtroom rules and procedures;

an understanding of when a witness is needed, and how he or she should be prepared for a trial;

an understanding of when an expert, consultant, or investigator is needed – where to find such a person, and how much is reasonable to pay; and

experience with different strategies for effective presentation of a case in court.

If you cannot afford to hire a lawyer there are several options that may help.

Every superior court in California has legal help available in family law and in small claims cases. Several superior courts can also help you with other legal issues. Find out what services are available at your court.

There are legal aid offices in many cities throughout California. These are non-profit organizations that provide free legal services to people below a certain income level. Find free and low-cost legal help in your area and find out what areas of law they cover.

If you don’t have much money but the other party in your case does, the court might order the other party to pay for some or all of your lawyer’s fees. (You would have to ask the court for this. It is not automatic.)

Many bar associations have Modest Means Panels made up of lawyers who will take certain kinds of cases for a reduced fee. (You would have to find your local bar association and ask if it could help you with this.)

You may be able to find a lawyer who will coach you on representing yourself (called "coaching"), or who will only handle (and charge you for) the more complicated parts of your case. This is called "limited scope representation" or "unbundled legal services.” (Your local bar association may have a list of lawyers who do limited scope representation.)

Generally, lawyers specialize in a particular area of the law. They may specialize in trial law (civil or criminal), bankruptcy law, elder law, family law, etc. When working with a lawyer, it is important to know his or her specialty.

NOTE: A lawyer cannot represent you in Small Claims court but they may help you prepare for your case.

People who live in a hotel or motel are not tenants if any of these situations apply:

They live in a hotel or motel for less than 31 days, and are charged a hotel occupancy tax.

They live in a hotel or motel for more than 30 days, but have not paid all of their charges.

They live in a hotel or motel where

the manager has a right to enter their room,

the hotel or motel lets people stay for less than a week,

there is a fireproof safe for residents to use,

there is a central telephone service,

there is maid, mail, and room service, AND

there is a restaurant for the residents of the hotel.

In these situations, a person is a guest, not a tenant. Guests do not have the same rights as a tenant. For example, the owner of a hotel can lock out a guest who doesn't pay his or her room charges on time, while a landlord would have to start an eviction case to evict a nonpaying tenant.

Residential Hotels

A residential hotel has six or more rooms used for sleeping purposes by guests, if the rooms are the main place these guests live

People do have the legal rights of tenants if the residential hotel is the main place they live. The owner of a residential hotel cannot require a guest to move or to check out and check back in after 30 days in order to stop the guest from getting the legal rights of a tenant.

Single lodger in a private residence

A lodger is a person who lives in a room in a house where the owner lives. The owner can enter all areas of the house, including the lodger's room. Most lodgers have the same rights as tenants.

However, if there is only one lodger in the house, the owner can evict the lodger without using formal eviction proceedings. The owner must give the lodger written notice that the lodger cannot continue to use the room. The length of the notice must be the same as the amount of time between rent payments (for example, 30 days). When the owner has given the lodger proper notice and the time is up, the lodger has no further right to stay in the owner's house and may be removed as a trespasser.

Transitional housing

Some tenants are residents of "transitional housing," which provides housing to formerly homeless persons for periods of 30 days to 24 months. Special rules cover the behavior of residents in, and eviction of residents from, transitional housing.

If a landlord wants a tenant to move out of the property, the landlord has to write to the tenant explaining what he or she plans to do.

The landlord must:

Give the tenant the type of notice that applies to the situation;

Follow the legal requirements and procedures;

Wait to see if the tenant follows the landlord's request.

There are different types of notices:

3-Day Notice to Pay Rent or Quit This is the most common type of notice, and applies when the tenant is behind on the rent.

3-Day Notice to Perform Covenants or Quit This type of notice is used when the tenant is breaking the lease agreement and the problem could be fixed. For example, a tenant might have a dog, even though the lease doesn't allow dogs.

30-Day Notice to Quit If the tenant has a lease for less than one year, the landlord may use this type of notice to end a rental agreement without giving a reason.

60-Day Notice to Quit If the tenant has been renting for more than one year, the landlord may use this type of notice to end a rental agreement without giving a reason.

90-Day Notice to Quit If the tenant lives in subsidized housing, the landlord must give the tenant 90 days' written notice and explain the reason for ending the lease.

NOTE: There are legal requirements and procedures for how the landlord is to give notice to his or her tenant. This is called "service of process." Learn how to serve the notice.

Normally, a landlord must give notice to the tenant if they plan to evict.

However... Sometimes, a landlord does not have to give notice before filing an eviction lawsuit in court.

1. End of "Fixed Term Lease" Some leases expire on a certain date. If the lease has expired and has not been extended, the landlord may file for eviction without giving the tenant notice first.

The landlord cannot accept rent for after the lease expires.

Some subsidized units, including ones paid for with Section 8 vouchers, do require notice if the landlord does not plan to renew the lease.

2. Tenant Gives Written Notice to End Lease Both the landlord and the tenant can end a lease by giving written notice. If the tenant gives the landlord notice that he or she plans to leave by a certain date, but then doesn't leave on time, the landlord can file an eviction lawsuit without giving the tenant notice.

The landlord cannot accept rent for after the termination date.

3. Removing Employees or Agents If the tenant lives in the unit as the landlord's employee or agent, and the landlord never accepted rent, then the landlord may file for eviction once the employment/agent relationship ends.

4. Abandonment If rent has been overdue for at least 14 days and the the tenant has moved out of the rental unit without telling the landlord, this is called abandonment. In this case, the landlord must give the tenant notice of intent to evict. The notice must:

be in writing;

be called "Notice of Belief of Abandonment;"

be addressed to the tenant;

state the address of the rental unit;

give a termination date for the lease. This date must be at least 15 days after personal service of the notice, or 18 days after service of the notice by mail;

When someone buys a new property, it may still be occupied by the former property owner, or his or her tenants. In this situation, the new owner cannot simply move into the property. The new owner must first give notice to the current occupants if he or she wants them to move.

The notice must:

be in writing;

be called "3-Day Notice to Quit" if the former owners are living there;

be called "60-Day Notice to Quit" if the former owner's tenants are living there;

give the name of the people the notice is for;

list the address of the property;

state that the occupants must move out by the end of the notice period;

The tenant may give the landlord notice any time during the rental period, but must pay full rent through the end of the notice period, even if he or she moves earlier (unless the landlord is already collecting rent from a new renter for that time period).

Often, a landlord will have a property manager who manages the rental unit. This manager is employed by the landlord and represents the landlord.

Usually, the tenant can deal with the property manager instead of the landlord. For example, the tenant can give notice of intent to move out to the landlord's property manager.

The name, address and telephone number of the manager and an owner of the building (or other person who can receive legal notices for the owner) must be written in the rental agreement or lease, or posted in the rental unit or building.

Disputes between landlords and tenants can happen for a number of reasons. For example, they could disagree over a rent increase, responsibility for repairs, or return of a security deposit. In any case, there are a number of ways the conflict can be resolved without going to court.

First, the people involved should talk calmly with one another. Perhaps one person would be willing to correct the problem or work out a solution once he or she understands the other's concerns.

Both parties have the duty of talking in good faith and fair dealing, meaning that both the landlord and the tenant are to treat each other honestly and reasonably. Here are a few thoughts to keep in mind:

Each person has rights and responsibilities under federal, state, and local law.

The terms of the lease or rental agreement should be clear and understandable.

Work to keep communication open. If there's a problem, try to work it out by talking it over.

If discussing the issue doesn't work, each person might write a letter to the other person, describing the problem as they see it and stating what he or she would like the other to do.

It would be good if copies of notes from conversations about any problems were kept. For example, it would be good if the landlord kept a copy of a repair request and made a note about when and how the problem was repaired.

If the landlord and tenant can't work out an agreement on their own, but want to avoid having to go to court, they might try mediation by a neutral, third party. Unlike a judge, the mediator has no power to order a decision but will simply work to help find a solution to the dispute that is acceptable to both sides.

Mediation is less expensive, faster, and less stressful than going to court. Mediation services are listed in the yellow pages of the telephone book under "Mediation Services" and are also often available through community programs.

The following rules might help to figure out whether the notice period has ended.

Beginning of Notice Period - The notice period begins on the day after the notice is properly served on the tenant.

Weekends and Holidays - Weekends and legal holidays count toward the notice period except when they fall on the last day for compliance.

For example:

If a "3-Day Notice to Pay Rent or Quit" is served on a Friday, the weekend counts toward the notice period because Saturday and Sunday are not the third day. The Monday also counts (unless it happens to be a court holiday). Therefore, in cases where a 3-day notice is served on a Friday, the complaint can usually be filed on the next Tuesday.

If a "3-Day Notice to Pay Rent or Quit" is served on a Wednesday, the last day for following the notice falls on a Saturday. However, Saturdays and Sundays are considered legal holidays so they do not count as the last day for following the notice. Therefore, in cases where a 3-day notice is served on a Wednesday, the complaint cannot be filed any earlier than the next Tuesday.

If a landlord served a "30-day Notice to Quit" to the tenant the landlord cannot file a complaint before the 30 days have ended. The complaint can only be filed on day 31 or later.

A person can be a landlord without being the owner of the rental unit. For example, if the primary tenant subleases the premises, then he or she is the subtenant's landlord and may file an unlawful detainer action against the subtenant.

If the owner of the property allows a management company to enter leases in its own name, then the management company is the landlord and may file an unlawful detainer complaint.

However, if the management company entered the lease in the owner's name, then the owner is the landlord and should be named as the plaintiff.

2. Who is "the Defendant"?

The person that the plaintiff wants to evict is the defendant. The defendant must currently live in the unit.

The plaintiff should make every effort to name all of the people occupying the unit as defendants, because it might be difficult to enforce a judgment against someone that was not named as a defendant.

It is not necessary to name children under the age of 18 as defendants.

Normally, a landlord will have a written rental agreement or lease with a tenant and know his or her name. However, there may be situations in which the known tenant allows other adults to live with him or her, and the landlord doesn't know the names of these people.

The landlord has several options for dealing with adult occupants in the rental unit other than the ones named in the complaint. (The landlord may wish to consult an attorney to help decide which option to choose.)

1. Do nothing. If the landlord does nothing, then even if he or she wins the case against the named tenants, the judgment will not necessarily be binding on the unnamed occupants. As a result, when the sheriff posts the eviction notice, the unnamed occupants will have an opportunity to file a Claim of Right to Possession after the hearing. This could result in a delay in the eviction.

2. Serve them. The landlord can serve the unnamed occupants with the "Summons", a "Complaint" and a "Prejudgment Claim of Right of Possession." (See Getting Started for Landlords.) The unnamed occupants would then have the right to add themselves as defendants to the lawsuit by filing a claim of right to possession within 10 days of service. If they do not exercise this right, then the judgment will be binding against them and they will not be permitted to file a claim of right to possession after the hearing. The disadvantage of this procedure is that it can result in a delay in the beginning of the case.

If a person can’t afford the court’s filing fees, there are forms he or she may file asking permission to not pay all or some of the court fees and costs. This is called getting the fees “waived,” and fee waiver packets are available at the courthouse for free, or can be downloaded from this site.

Eligibility for the fee waiver is based upon the person’s household income or if he or she is receiving public assistance. If a person files a fee waiver but is found not to be qualified, he or she must pay the appropriate filing fees.

The amount of money the landlord might have gotten by renting the unit to someone else during the tenant's unlawful stay;

Court costs and attorney's fees;

The cost of repairs, if the tenant damaged the property.

If the court finds that the tenant only stayed in the unit to be mean, spiteful, or to inflict suffering on the landlord, the court also may make the tenant pay the landlord up to $600 as a penalty. This is called "statutory damages for malice." (See California Code of Civil Procedure, Section 1174(b))

1. Personal Service The process server hands a copy of the Complaint and Summons to the tenant. Service is complete after the tenant has the papers.

2. Substitute Service The process server hands a copy of the Complaint and Summons to an adult at the tenant's home or office. The process server mails another copy of the Complaint and Summons to the tenant. It is complete 10 days after mailing.

Substitute service is only allowed after the process server tried to hand the documents to the tenant more than once.

3. Mail and Acknowledgment of Receipt

The process server mails a copy of the Complaint and Summons to the tenant. They must also include two copies of a Notice and Acknowledgment of Receipt. A return envelope addressed to the landlord, with postage, must also be sent. The service will be complete only if the tenant fills in the Acknowledgment form and mails it back to the landlord.

If the tenant doesn't sign and return the Acknowledgment form within 20 days, then the landlord may serve the tenant in another way. The tenant may be held responsible for the extra costs, even if the tenant wins the case.

4. Posting and Mailing

The process server serves the tenant by posting a copy of the Complaint and Summons on the property. They must also send another copy by certified mail to the tenant's last known address. The service will be complete 10 days after posting and mailing.

This method of service is only allowed if the landlord is granted a court order.

A request to use Posting and Mailing must include a Declaration from the process server showing they made many attempts to serve the tenant by personal or substitute service first.

5. Certified Mail

The process server mails the Complaint and Summons to the tenant by certified mail at the address in the notice from the tenant. If no address was listed in the tenant's notice, then it can be mailed to the same address where the "Notice of Belief of Abandonment" was mailed or personally served. The service will be complete 10 days after it is mailed.

This method of service is allowed only if the tenant served the landlord with a written "Notice of Intent Not to Abandon."

This method of service can only be used in the first 60 days after the landlord received the tenant's Notice.

The tenant reported the landlord to a governmental agency for violating the law, and the landlord tried to evict the tenant as a result.

The tenant previously overpaid the rent.

The landlord didn't make necessary repairs to the unit. The tenant made the repairs, but the landlord did not credit the cost of the repairs.

The landlord violated rent control rules. Most rent control has ended in California, but there are still some types of housing in some cities that have it. Find out if your city has rent control. If it does, you can contact your city's housing department to get more information about their rent control rules, and whether your unit is covered.

After a tenant is served with the landlord's Complaint. he or she only has 5 days to file a response with the court. Those 5 days include Saturdays and Sundays, but not court holidays.

The tenant must also serve a copy of the Answer on the landlord. This copy must be served at the address the landlord put on the top left hand corner of the Complaint. However, the only way to know for sure that a tenant has filed a response is to check the court file.

Calculating a Tenant's Deadline to Respond:

Beginning of Response Period: A tenant's 5-day deadline to respond begins on the day after the date he or she was served with the Summons and Complaint. The 5 days include Saturdays and Sundays, but not court holidays.

Personal service: Personal service is complete on the date of delivery. For example, if the tenant were personally served with the Summons and Complaint on the 1st day of the month, the 5-day period to respond would begin on the 2nd and end on the 6th. On the 7th day of the month, if the tenant has not responded, the landlord could file a "Default." A "Default" tells the court that the tenant did not respond.

Other forms of service: Substitute service and service by posting and mailing are not complete until 10 days after the mailing. For example, if the Summons and Complaint were mailed on the 1st day of the month, the service would not be complete until the 11th. The 5-day period to respond would begin on the 12th and end on the 16th. On the 17th day of the month, if the tenant has not responded, the landlord could file a "Default."

Weekends: Weekends count toward the 5-day period to respond except when they fall on the 5th day. For example, if the Summons and Complaint were personally served on a Monday, the 5th day to respond would fall on Saturday. As a result, the deadline to respond would be Monday. The landlord could file a "Default" on Tuesday, if the tenant did not respond.

Late Responses: If the tenant's deadline to respond has passed, the tenant can file a late response if the landlord has not already filed a "Default."

If a tenant's response and the landlord's default are filed with the court on the same day, they will be processed in the order the court receives them. If the landlord's papers were received first, the "no response" will be entered and the tenant's response will be rejected. If the tenant's response was received first, it will be filed. The landlord's default will be rejected and the case will move ahead.

If a tenant's deadline to respond to an unlawful detainer Summons and Complaint has passed and the landlord has not received a response, then the landlord may ask that the court enter in the file that the tenant failed to respond.

You may get these forms from the clerk's office or you can download these forms by clicking on the form number. Select the form you need and follow the link to either download and print the file, or fill it out on your computer, then print it out. The forms are editable PDFs - you will need Adobe Reader to view these files.

The clerk will check that the deadline to respond has passed and that a response was not filed. If both are true, the clerk will enter in the file that the tenant "defaulted" - that is, the tenant failed to respond.

NOTE: If One or More, But Not All Tenants Respond Each tenant may be treated separately for purposes of "entering default" - that is, stating in the file that the tenant did not respond. If one tenant's deadline to respond has passed, but another tenant still has time left to respond, the landlord may request the "default" of the tenant whose deadline has passed.

Filing and Service: The landlord must file the "Request for Entry of Default" in the clerk's office and mail a copy to each tenant at the address where he or she was served with the Summons and Complaint. Then a "Proof of Service" form must be filed.

Effect of default: If a "default" is entered against a tenant, the tenant loses the right to oppose the landlord's request for a judgment by the court.

The party requesting a jury trial will be responsible for paying the first $150 cost for jury fees 5 days before the trial starts. If you cannot afford these fees and you have already been approved for a fee waiver, you can file a Request to Waive Additional Court Fees (FW-002). If you have not already requested a fee waiver, you will need to complete a Request to Waive Court Fees (FW-001) as well.

a written "stipulation" (agreement by both parties) as soon as the need for a postponement is known.

There will be a significant fee to pay for changing the trial date. The court clerk where you file will be able to tell you how much the fee is. If you cannot afford these fees and you have already been approved for a fee waiver, you can file a Request to Waive Additional Court Fees (FW-002). If you have not already requested a fee waiver, you will need to complete a Request to Waive Court Fees (FW-001) as well.

If a landlord has already started an eviction action against a tenant, and the tenant moves out before the trial and leaves the property neat and clean, the unlawful detainer lawsuit normally is dismissed.

If the landlord does not dismiss the case, the tenant needs to appear at the trial and tell the court that he or she did move out. (It's a good idea for the tenant to have photographs taken of the condition of the rental unit to help show the court that it was left neat and clean when the tenant moved out.)

If the tenant still owes the landlord money for unpaid rent, the landlord can still sue the tenant for that money, even if the tenant did move out.

Often, a tenant is willing to move out of a property. He or she just needs more time to find a different place to rent. In this situation, the landlord might agree to drop the lawsuit if the tenant does certain things.

To let the court know that this has been done, the landlord must file a:

Agree on the date the tenant will move out. This can be anywhere from a week to several months.

Agree on the rules the tenant will follow while still in the unit, The landlord must agree on the amount of money that the tenant must pay, and when that money is due.

Agree on the conditions for "Dismissal and Entry of Judgment." The landlord must agree that, if the tenant makes the required payments and moves out of the property by the due date, the landlord will dismiss the lawsuit. Normally, both sides pay their own costs.

If the tenant does not pay on time or does not move out of the property on time, then the landlord may get a judgment against the tenant. He or she does this by filing the Stipulation with a sworn declaration that the tenant broke the terms of the Stipulation.

It is not necessary to agree on the amount of back rent or other damages that the tenant owes in the Stipulation. These issues can be solved later.

If the tenant does not need to do anything in the Settlement, the landlord must file the Dismissal 45 days after filing the settlement.

If the tenant did have to take do certain things in the Settlement, the court will schedule a dismissal review 45 days after the dismissal date.

If the landlord has not dismissed the lawsuit, the court will usually dismiss it at the dismissal review. The court will dismiss unless the landlord can give a good reason for why the case should not be dismissed.

If the case goes to trial and judge decides that the landlord is correct (that the tenant is in the rental unit unlawfully) then the tenant must move out of the property.

If the tenant knows about the judgment and still does not move out, the landlord may ask the Sheriff to physically evict the tenant.

To do this:

The landlord must prepare and submit to the court a:Writ of Possession (Form CD-130) that directs the Sheriff to enforce the judgment made by the court.

The court clerk will issue the Writ and return the documents to the landlord.

The landlord is to take the original and 3 copies of the "Writ of Possession" to the Sheriff's office.

The Sheriff will post a Notice of Eviction on the rental unit, which gives the tenant 5 days to leave.

If the tenant does not leave by that time, the Sheriff will forcibly remove him or her. The landlord should be ready with a locksmith to change the locks on the rental unit.

The cost of having the Sheriff evict the tenant will be added to the money judgment, which the landlord can seek to collect from the tenant.

The landlord must file a Memorandum of Accrued Costs After Judgment (Form MC-012) to have this cost added. A copy of this Memorandum is to be mailed to the tenant, and a Proof of Service by Mail filed with the court.

However, deposits cannot automatically be non-refundable or be used to cover normal "wear and tear," or damage that existed when the tenant moved in. (California Civil Code, Section 1950.5(g))

NOTE: If the landlord does not give the security deposit back to the tenant (or give the written statement why some or all of it is being kept) within 21 days, he or she loses the right to retain any of the security deposit, and must return the full amount to the tenant.

However, the landlord may still take legal action to recover money that the tenant owes for any damages.

After 21 days, the tenant may write a letter to the landlord requesting that the security deposit be returned.

If the tenant does not get a response from the landlord, the tenant may contact a mediator, a lawyer, a local low cost legal agency, or file a case in Small Claims Court. Find free and low-cost legal help.

In an unlawful detainer case, in addition to deciding if a tenant is staying in a rental unit illegally or not, the judge may decide that one party must pay the other party some money.

For example:

If the judge decides in favor of the tenant, the landlord may have to pay the tenant's court costs and attorney's fees. (However, the tenant would have to pay any rent that the court might order.)

If the judge decides in favor of the landlord, the tenant may have to pay the landlord's courts costs and attorney's fees, and any proven damages - such as overdue rent, or the cost of repairs if the tenant damaged the premises.

The court will not collect this money for anyone. The person to receive the money must collect it him or herself.

The court will issue the orders and other documents required to force the debtor to pay.

Not all judgments are collectible because the debtor may not have any income or property of value.

Collecting the money can become very complicated. It may even involve going to small claims court.

In some cases, either landlords or tenants may appeal the judge's decision if they are convinced it is worth their effort and time. However, not all judgments, and not all issues in the trial, can be appealed.

Determining whether a judgment can be appealed may take some research, and an attorney's evaluation may be very helpful.

Before you contact an attorney, it might be helpful to understand several things:

The filing of an appeal does not automatically stop the eviction.

The appellate court can only decide if there were mistakes of law made by the trial court that were serious enough to have prevented you from having a fair trial. And those trial court mistakes must be found to have made the outcome of the trial substantially different than it would have been without the mistake.

The appellate court cannot retry the case. No witnesses can be heard, and the court cannot consider any evidence that was not presented at trial. It cannot consider conflicting evidence or choose to believe you instead of the other witnesses. The court cannot review questions of fact.